By Jane Adolphe
ROME, DEC. 4, 2012 (Zenit.org).- The undefined terms “sexual orientation” and “gender identity” are not agreed upon language in universal human rights law. The terms are vague, ambiguous and highly subjective. Consequently, they violate the principle of legal certainty. Recognizing the critical difference between desires, feelings, thoughts and inclinations, on the one hand, and behavior, on the other, desires, feelings, thoughts, and inclination remain, necessarily, praeter ius (outside the law). As such they have not been recognized as part of customary international law, general principles of law or treaty law.
Despite opposition by many member UN Member States, “sexual orientation” (SO) and “gender identity” (GI) became the subject matter of a non-binding Resolution of the U.N. Human Rights Council (HRC). The Resolution commissioned a study from the U.N. High Commissioner for Human Rights [UNHCHR] “documenting discriminatory, laws and practices and acts of violence against individuals based on their sexual orientation and gender identity” (A/HRC/RES/17/19, 14 July 2011). The HRC Resolution also envisioned a Panel Discussion which would be convened during the 19th Sessions to inform Member States “about the facts” of the UNHCHR’s Report and “to have a constructive, informed and transparent dialogue” (A/HRC/RES/17/19, 14 July 2011).
The following States gave verbal Statements in opposition to the Resolution: Pakistanstressed concern that the HRC choice to discuss controversial notions have no basis in international law and international human rights standards. Nigeria: argued that more than 90% of African countries did not support the Resolution, and new notions were being imposed on countries. Bahrain: condemned the attempt to deal with controversial issues, based on personal decisions that did not constitute fundamental human rights. Bangladesh: noted the lack of any legal foundation for the Resolution in human rights instruments, and expressed its consternation by the focus on personal sexual interests. Qatar: contended that the Resolution showed a lack of respect for cultural diversity, religious freedom, and the responsibility of States to maintain public order and morals (art. 29 UDHR). Mauritania: emphasized that the subject matter of the Resolution was outside the scope of international law. (See UN Press release on the Human Rights Council, 17 June 2011).
Part 2 will be published on Wednesday, December 5th.
Jane Adolphe is the Associate Professor of Law at Ave Maria School of Law in Naples, Florida.